Immigration Consequences of a Criminal Conviction
It is essential to consult a lawyer if you are charged with a criminal offence, but even more important if you are not a Canadian citizen as there can be very severe consequences if you are convicted.
Almost all of immigration law is governed by the Immigration and Refugee Protection Act. This legislation divides individuals into categories with each having certain rights based on these categories.
There are four types of status in Canada:
Citizen
Permanent Resident
Protected Person (i.e. Refugee)
Foreign National (this includes visitors, temporary workers, students, persons with no status)
Convictions for certain criminal offences can cause an individual to be inadmissible to Canada. Individuals who are inadmissible are not permitted by law to enter or remain in Canada.
Immigration consequences of criminal convictions apply to all individuals who are not Canadian citizens. The only consequence for Canadian citizens related to immigration is that certain criminal convictions may affect the ability to sponsor relatives for permanent residence.
The range of criminal conduct that can render a Foreign National inadmissible is much broader and remedies are usually much more limited.
Under the Immigration and Refugee Protection Act there are three terms of law that are essential to understanding immigration consequences of criminal convictions.
Serious Criminality
This refers to a permanent resident or a foreign national who has been convicted in Canada of any offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years (no matter what sentence the person actually receives).
This includes offences such as Driving Impaired, Robbery, Sexual Assault, Break and Enter, Assault with a weapon, Possession for the purpose of trafficking, and Murder (among many others).
OR for which a term of imprisonment of more than six months has actually been imposed
This can be a finding
Following the Supreme Court of Canada decision Tran v Canada in 2017, a conditional sentence of imprisonment does not constitute a “terms of imprisonment”. A conditional sentence does not go towards determining serious criminality.
If you are a permanent resident or a foreign national and are convicted of an offence of serious criminality OR any offence and serve a sentence of custody more than 6 months then an inadmissibility finding can be made based of serious criminality.
Permanent resident’s have the right to appeal in these cases, except when they have been sentenced to a custodial period of over 6 months.
Criminality Simpliciter
A foreign national who has been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment OR of two offences under any Act of Parliament arising out of a single occurrence will result in inadmissibility to Canada.
It is important to note that all hybrid offences are considered indictable, no matter how the Crown chooses to proceed.
This means that if you are charged with an offence where the Crown can decide if they proceed by summary conviction or as in indictable offence, even if they choose to proceed by summary conviction under the IRPA it is considered indictable.
Even if you are not convicted of an indictable offence, if you are convicted of two offences arising out of the same incident this will result in inadmissibility based on criminality simpliciter.
Organized Criminality
A permanent resident or foreign national who is a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity or who is him/herself engaging in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment, inside or outside of Canada is inadmissible to Canada.
OR in the context of trans-national crime, has engaged in activities such as people smuggling, trafficking in persons or laundering of money or other proceeds of crime.
This refers to being involved with a criminal organization such as a gang or other type of organized crime.
There is no ability to appeal a removal order if you have been found to be inadmissible based on organized criminality regardless of your status.
A permanent resident can be inadmissible based on ‘serious criminality’ or ‘organized criminality’.
A foreign national can inadmissible based on ‘serious criminality’, ‘criminality simpliciter’ or ‘organized criminality’.
An Individual must be convicted of an offence under an Act of Parliament, or a Federal Law to amount to criminality under the Immigration and Refugee Protection Act. Convictions under Provincial Offences Acts would not trigger criminality findings.
If a criminal case is resolved by way of a discharge or peace bond, it does not result in ‘conviction’ under the IRPA and does not result in criminal inadmissibility.
There are many other potential consequences of a criminal conviction if you are not a Canadian citizen including the loss of the ability to apply for citizenship, loss of ability to sponsor family members, among many others.
It is important that you consult a criminal defence lawyer, as this can be difficult to navigate on your own. Kathleen is knowledgeable about the various immigration consequences of criminal convictions. If you have been charged with a criminal offence, contact Kathleen for a consultation.
